Re Moline and Comcare

[2003] AATA 827

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 827

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No A2002/111

GENERAL ADMINISTRATIVE DIVISION		)
Re		WENDY CONNERS MOLINE

Applicant

And COMCARE

Respondent

DECISION

Tribunal

Mr M J Sassella, Senior Member

Dr M D Miller AO, Member

Date25 August 2003

PlaceCanberra

Decision The tribunal affirms the decision under review.  The applicant is not entitled to costs associated with the application.

...............................................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION – cervical spondylosis – aggravation of cervical spondylosis – whether employment made material contribution to aggravation

LITIGATION – Commonwealth as “model litigant” – Comcare as emanation of Commonwealth for litigation purposes – obligations of Commonwealth entities involved in litigation against private persons

Administrative Appeals Tribunal Act 1975 s 37

Judiciary Act 1903 s 55ZF

Safety, Rehabilitation and Compensation Act 1988 ss 4(1)(“aggravation”, “ailment”, “disease”), 7(6), 14(1), 16, 29(1), (2), 52, 62, 66(1)

Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385

Beattie, Commonwealth of Australia v (1981) 35 ALR 369

Bessey, Australian Postal Corporation v (2001) 32 AAR 508

Casarotto V Australian Postal Commission (1989) 86 ALR 399

Hayes, Australian Postal Commission v (1989) 18 ALD 135

Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1

Lees v Comcare (1999) 56 ALD 84

Nadge and Australian Postal Corporation, Re (1994) 33 ALD 710

Oudyn, Australian Postal Commission v [2003] FCA 318

Scott v Handley (1999) 58 ALD 373

Tippett v Australian Postal Corporation (1997) 27 AAR 40

REASONS FOR DECISION

25 August 2003 Mr M J Sassella
Senior Member     

APPLICATION

1.       Ms Wendy Conners Moline, born 2 September 1947 (“the applicant”, “the employee”), applied to the Administrative Appeals Tribunal (“the tribunal”) for review of a decision of an independent review officer within Comcare (“the respondent”) dated 1 March 2002 (T90) which affirmed a primary decision dated 11 December 2001 (T80).  The decision was that Comcare was no longer liable to pay compensation to Ms Moline under any provision of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[1].  This decision resulted from a medical review of the applicant’s case conducted by Comcare. 

[1] tribunal convened a hearing in this matter in Canberra on 19 – 21 May 2003.  Ms J Godtschalk of counsel represented Ms Moline and Mr P Jones of counsel represented Comcare.  Oral evidence came from the applicant, Dr R R Schellenberger, a general surgeon, Dr J Olsen, a specialist in occupational and environmental medicine, Dr K Woods, an orthopaedic surgeon, Associate Professor R Oakeshott, a surgeon and consultant in rehabilitation medicine, Mr R Parry, Ms A Khan, Mr G Whitfield, Ms R Grennan and Dr N W McGill, a rheumatologist.

3.       The tribunal had access to the following documents which were taken into evidence and marked as exhibits:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T92) provided by the respondent.

Exhibit A1 – Applicant’s statement of facts and contentions, 1 May 2003.

Exhibit A2 – Letter dated 23 April 1999 from Ms M Bristow of Comcare to applicant.

Exhibit A3 – Report by Dr Woods, 3 March 2003.

Exhibit A4 – Report by Dr Schellenberger, 4 June 2002.

Exhibit A5 – Report by Dr Woods, 8 September 1999.

Exhibit A6 – Report by Dr Woods, 1 August 2001.

Exhibit A7 – Comcare claim form, 7 April 1999.

Exhibit A8 – Summary of applicant’s medical expenses.

Exhibit A9 – Applicant’s increment report, 9 August 1999.

Exhibit A10 – Health Insurance Commission (“HIC”) Employee Self Service Handbook.

Exhibit A11 – Letter dated 14 May 2003 from Comcare’s solicitors to Associate Professor Oakeshott.

Exhibit A12 – Letter dated 14 May 2003 from Comcare’s solicitors to Dr McGill.

Exhibit R1 – Respondent’s statement of facts and contentions, 15 October 2002.

Exhibit R2 – Report by Dr McGill, 24 September 2002.

Exhibit R3 – Report by Dr Olsen, 11 March 2003.

Exhibit R4 – Applicant’s right shoulder X-ray and ultrasound reports, 30 March 1995.

Exhibit R5 – Letter dated 18 May 1995 from Dr C Sutton, general practitioner, to Dr Woods.

Exhibit R6 – Report by Dr Woods, 26 July 1995.

Exhibit R7 – Report by Dr A Brook, rheumatologist, 19 July 1996.

Exhibit R8 – Report by Dr Brook, 5 September 1996.

Exhibit R9 – Applicant’s pre-employment health questionnaire, 26 March 1998.

Exhibit R10 – Dr Sutton’s clinical notes.

Exhibit R11 – Clinical notes from Immediate Health Care Medical Centre.

Exhibit R12 – Medical certificate from Dr C Roberts, 29 March 1999.

Exhibit R13 – Clinical notes from Tuggeranong Square Medical Practice.

Exhibit R14 – Medical certificate from Dr C R Watkins, osteopath, 21 August 2002.

Exhibit R15 – Medical certificate from Dr K Calder, general practitioner, 27 September 2002.

Exhibit R16 – Medical certificate from Dr D Griffiths, dental surgeon, 18 October 2002.

Exhibit R17 – Medical certificate from Dr P Hughes, general practitioner, 23 April 2003.

Exhibit R18 – Videocassette containing material recorded on 13, 14, 17 and 27 September 2002.

Exhibit R19 – HIC leave records.

Exhibit R20 – HIC’s AURION screen-based leave application form.

Exhibit R21 – Report by Associate Professor Oakeshott, 16 May 2003.

Exhibit R22 – Statement by Ms Khan, 15 May 2003.

Exhibit R23 – Statement by Mr Whitfield, 12 May 2003.

Exhibit R24 – Statement by Ms Grennan, undated.

Exhibit R25 – Health Services Australia (“HSA”) questionnaire, 23 April 1998.

Exhibit R26 – Report by Dr McGill, 17 May 2003.

the commonwealth as model litigant

4.       The tribunal is aware that Comcare, as a party in tribunal proceedings, regards itself as an exemplar of the ethical standards implicit in the notion of the Commonwealth as a model litigant in legal proceedings.  Almost always, in the experience of the two members who make up this tribunal, Comcare and its representatives well and truly live up to these standards.  Unfortunately in this matter those standards were not evident.  The applicant and her representatives were significantly disadvantaged by the following features of the respondent’s handling of its case:

·     Potentially prejudicial evidence in the form of witness statements by a number of the applicant’s past and present supervisors (ex R22, R23, R24, plus two documents not received in evidence) was filed with the tribunal and served on the applicant’s representatives on 15 May 2003, the Thursday prior to the Monday when the hearing commenced.  The tribunal’s copy arrived very late on the Thursday.

·     The videocassette evidence was played on the second day of the three-day hearing.  This evidence was produced during the hearing without warning.  That in itself was not a problem given that the Federal Court in Australian Postal Commission v Hayes (1989) 18 ALD 135 and in Australian Postal Corporation v Bessey (2001) 32 AAR 508) approved of such a process in relation to video evidence. However, the respondent had sought comments in writing from its medical experts, Associate Professor Oakeshott (ex R21) and Dr McGill (ex R26) which were not tendered or made available to the tribunal or the applicant’s representatives until during the proceedings on the third and final day of the hearing, thereby reducing the time available to the applicant’s representatives to consider their position in relation to that material.

·     On the third and final day of the hearing, at the commencement of proceedings, counsel for the respondent produced for the first time and sought to tender written material relating to a medical examination of the applicant by HSA (ex R25) dating from 23 April 1998.  The opening of the third day of the hearing was delayed because the presiding member was involved in a directions matter that commenced earlier than the appointed time for the hearing.  Contrary to expectations the directions matter ran overtime.  Counsel for the applicant very reasonably objected that her opposing counsel had not extended to her the courtesy of providing to her copies of this HSA material before the hearing began.  The same observation applied to the two expert medical reports on the video evidence.

5. This conduct is entirely unacceptable. Section 66 of the Act imposes sanctions on an applicant who withholds documentary evidence and produces it only at the hearing:

Evidence in proceedings before Administrative Appeals Tribunal

66. (1) Where:

(a) a claimant who has instituted proceedings under this Part seeks to adduce any matter in evidence before the Administrative Appeals Tribunal in those proceedings; and

(b) the claimant had not disclosed that matter to the Tribunal at least 28 days before the day fixed for the hearing of those proceedings;

that matter is not admissible in evidence in those proceedings without the leave of the Tribunal.

There is no equivalent provision relating to a respondent. However, the tribunal understands that s 66 was included in the Act and drafted to apply only to applicants because it was considered that respondents as model litigants, and because of provisions such as s 37 of the Administrative Appeals Tribunal Act 1975[2], would do the right thing without the threat of sanctions.  That confidence is clearly misplaced when events such as happened here take place.  This lack of symmetry between the obligations of each party before the tribunal is regrettable.

[2] Commonwealth in its dealings with its citizens occupies a powerful and privileged position.  The judiciary has long recognised that this power imbalance imposes special obligations on the Commonwealth not to abuse its power.  Indeed, in its dealings with its citizens the Commonwealth is held to standards higher than those of private individuals or corporations.  Where the Commonwealth is a party engaged in a tender process intended to lead to the negotiation of a commercial agreement it is required, in effect, to be a model contractor.  Finn J said in Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1, 40 – 42:

“It has not been pleaded or argued that, because the CAA is a public body, its contract with Hughes is for that reason amenable to challenge on what for convenience I might call ‘public law’ rather than on conventional contractual (ie ‘private law’) grounds: cf R v East Berkshire Health Authority; Ex parte Walsh [1985] 1 QB 152; see also eg; Mercury Energy Ltd v Electricity Corp of New Zealand Ltd [1994] 2 NZLR 385; see Taggart, “Corporatisation, Contracting and the Courts” [1994] Public Law 351; cf L Pearson (ed), Administrative Law: Setting the Pace or Being Left Behind, “Contracting Out”, AIAL, Sydney, 1997, pp 420ff, 433ff. What, relevantly, is in issue is the propriety of the CAA’s conduct in a commercial contract in which the ‘relevant relationship’ between the parties is that of contracting parties: see eg Air India v Commonwealth [1977] 1 NSWLR 449 on the ‘relevant relationship’.

“To say the matter is one of contract does not, though, exhaust the appropriate characterisation of the parties to this contract. The CAA, as I have noted is a public body — a body whose owners are, ultimately, the Australian community whom the authority serves under and in accordance with its statutory mandate.

“As with any agency of government — and I do not mean by this that it is thereby within ‘the shield of the Crown’ — it has no private or self-interest of its own separate from the public interest it is constitutionally bound to serve: cf Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 191; see also Mercury Energy Ltd v Electricity Corp of New Zealand, above, at 388; Webster v Auckland Harbour Board [1983] NZLR 646 at 649–50; Jones v Swansea City Council [1990] 1 WLR 54 at 71, 85. That public interest in the case of a body such as the CAA is to be determined from what is express or implied in the CAA Act itself. That Act of Parliament indicated the end of the CAA’s service.

“There is, I consider much to be said for the view that, having no legitimate private interest in the performance of its functions, a public body (including a State owned company) should be required as of course to act fairly towards those with whom it deals at least in so far as this is consistent with its obligation to serve the public interest (or interests) for which it has been created. I have no need here, though, to rely upon such a broad notion.

“That the law entertains expectations of fair dealing of government and of public bodies is manifest in some number of spheres. First and most obviously, there is the general application of the requirements of procedural fairness to ‘governmental executive decision-making’: Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; at 653; 93 ALR 51; see also; Annetts v McCann (1990) 170 CLR 596; 97 ALR 177 — though it needs to be acknowledged that these requirements can in limited circumstances extend to the decision-making (characteristically to decisions to expel or to discipline members) of non-governmental bodies and associations: see Aronson and Dyer, Judicial Review of Administrative Action, LBC, Sydney, 1996, pp 493–5.

“Secondly, there is what Griffith CJ referred to in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342 as:

‘the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary …’

“This proposition has received significant, recent judicial endorsement in this country most notably in the Full Court of this court in SCI Operations Pty Ltd v Commonwealth (1996) 139 ALR 595 per Beaumont and Einfeld JJ; see also; Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125. I note in this particularly the observations of Mahoney J in his dissenting judgment (on grounds not presently relevant) in Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558–9 in applying the proposition to a local authority – to ‘a corporation constituted by statute, and discharging public functions’:

‘It is well settled that there is expected of the Crown the highest standards in dealing with its subjects: see Melbourne Steamship Co Ltd v Moorehead …, per Griffith CJ. What might be accepted from others would not be seen as in full accord with the principles of equity and good conscience to be expected in the case of the Crown: see P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383–4. In my opinion, a standard of conduct not significantly different should be expected of a statutory corporation of the present kind …’

“This fair play principle has its most common manifestation in the ‘model litigant’ standards exacted from the Crown in legal proceedings: see, eg Director of Public Prosecutions (Cth) v Saxon (1992) 28 NSWLR 263.

“Thirdly, and again litigation related, the rule in Ex parte James; Re Condon (1874) LR 9 Ch App 609 has been applied to public bodies (eg local authorities: ; R v Tower Hamlets London Borough Council; Ex parte Chetnik Developments Ltd [1988] AC 858) so as to ensure ‘high principled’ action when mistaken payments have been received by them; see also SCI Operations Pty Ltd v Commonwealth, above.

“In differing ways these instances reflect policies in the law, albeit in specific contexts, (a) of protecting the reasonable expectations of those dealing with public bodies; (b) of ensuring that the powers possessed by a public body, ‘whether conferred by statute or by contract’, are exercised ‘for the public good’: cf Jones v Swansea City Council [1990] 1 WLR 54 at 71; and (c) of requiring such bodies to act as ‘moral exemplars’: government and its agencies should lead by example:; Olmstead v United States 277 US 438 (1928) at 485; Joint Committee of Public Accounts, Social Responsibilities of Commonwealth Statutory Authorities and Government Business Enterprises, AGPS, Canberra, 1992, Report 315, esp para 2.21ff. These policies I consider to be important in the present matter. I should add for the sake of completeness that I do not regard the decision of the Full Court of this court in General Newspapers Pty Ltd v Telstra Corp (1993) 45 FCR 164; 117 ALR 629 as having present bearing on the significance to be attributed these policies.

“Given the view I earlier expressed that fair dealing is, in effect, a proper presupposition of a competitive tender process contract (especially one involving the disposition of public funds), and given that a public body is the contracting party whose performance of the contract is being relied upon, a necessary incident of such a contract with a public body is, I am prepared to conclude, that it will deal fairly with the tenderers in the performance of its tender process contracts with them.”

7.       Even in the tender/contract context the court relied on the learning regarding the Commonwealth as model litigant to clarify the situation.

8.       In 1999 in Scott v Handley 58 ALD 373 the full Federal Court applied some of the principles associated with the role of the Commonwealth as model litigant. At pages 378-379 and 381-384 their Honours said:

“The proceedings on 15 October 1998 

“[22]     On 9 October 1998 a solicitor on behalf of the secretary wrote to the District Registrar in the following terms:

‘I refer to the hearing of the above matter on 15 October 1998 and enclose for filing the affidavits of Mr Bill Burn, Ms Roberta Chrystal and Ms Toni Pedler of Centrelink.

2. I would be grateful if you could confirm that the listing at 2.15pm on 15 October 1998 will involve the following issues:

(a)the applicant's notice of motion dated 3 August 1998 concerning amendment of their affidavit dated 12 June 1998;

(b)the respondent's notice of motion dated 3 April 1997 concerning relief sought by the applicant's notice of appeal under s 39B of the Judiciary Act 1903 (Cth), which was remitted to this court from the full court in its decision dated 3 October 1997;

(c)            the substantive hearing of matters VG666/1996 and VG69/1997.

3. I note that the second respondent is concerned that this matter will not conclude on 15 October 1998.’

“[23]     On 9 October 1998 the solicitor, Mr Richard Knowles, personally served the applicants with the affidavits of Mr Burn, Ms Chrystal and Ms Pedler at approximately 3 pm. 9 October 1998 was a Friday. Mrs Scott said to Mr Knowles that, in her opinion, the hearing on 15 October was only for the purposes of the notice of motion dated 3 August. She was advised then by Mr Knowles that he had contacted the registry, and that the registry had confirmed that the substantive hearing, as well as the hearing relating to the notice of motion, would proceed on 15 October 1998. Mr Knowles says that he advised Mrs Scott that the second respondent, the secretary, was ready to proceed. The department would not consent to any adjournment sought by the applicants. Mr Knowles told Mrs Scott that she should use the public telephone immediately to contact the Federal Court registry listings manager, if she wished to seek an adjournment. He also advised her to deliver a letter to the court on 12 October to inform the court of the applicants' proposed action.

“[24]     A letter dated 12 October 1998 was sent by Mr and Mrs Scott to Heerey J. The letter in part said:

‘On 3 August 1998 the applicants filed the notice of motion for directions pursuant to Order 1 Rule 9 of the Federal Court Rules 1976 (Cth) and, conditionally, for leave - if needed (please, see the enclosed copy of the official receipt of the Federal Court). The directions hearing was scheduled to be heard on 15 October 1998.

‘The applicants have noticed that the court may have considered the above-stated directions hearing as the final hearing.

‘For the sake of clarity, the applicants are informing Your Honour that:

(a)            the applicants are not ready for the final hearing yet;

(b)            the applicants are not aware of any request to fix date for trial, regarding the proceeding No VG 69 of 1997, being filed and served.’

[emphasis original]

“[25]     On 15 October 1998, when the matter was called, Mrs Scott said to his Honour, at the outset:

‘We have never asked for the hearing to be today.’

To which his Honour a little later responded:

‘... well, I gave a direction that the final hearing of this matter was to be heard today. Why do you say it should not be heard today?’

Then followed the discussion concerning the notice of listing and other matters, to which his Honour responded:

‘I'm quite satisfied that it was made clear to the applicants that today would be the final hearing of this matter, whether or not there would also be any outstanding motions dealt with today, and I refer to the affidavit of Richard Colin Knowles sworn today. So I propose to deal with the final hearing of this matter today and any outstanding notice of motion which the parties [wish] to raise today.’

His Honour then entertained an application for an adjournment of the hearing on the basis, according to Mrs Scott, that:

‘We are unready to present the main issues now, only the directions hearing.’

“[26]     Mrs Scott then applied for what she described as a ‘non-suit’, stating ‘We are not ready to proceed’.

“[27]     On the application on behalf of the respondents that both applications be there and then dismissed, his Honour said:

‘I think if you're not ready to proceed and if you haven't made out a case for adjournment I must accede to counsel's application that both applications be dismissed. Do you have anything to say as to that?’

In response, Mrs Scott said among other things:

‘Dismissal of this hearing will be detrimental to all five million people who are dealing with the Department of Social Security and who are very often in the situation similar to the applicants.’

His Honour said:

‘I do not consider the matters that Mrs Scott has raised are relevant to the question I have to decide, which is to make an order that's fair as between the Scotts and the department. I won't repeat what I've already said about the history of this matter. I'm satisfied that a proper order is that both applications, VG 666 of 1996 and VG 69 of 1997, be dismissed.’

“[28]     The substantive issue in these appeals is whether, in the light of the circumstances set out above, the trial judge's refusal to grant the Scotts the adjournments they sought resulted in a miscarriage of justice: cf Sali v SPC Ltd (1993) 116 ALR 625; at 628-9. We are constrained to the view that it did, though for reasons not brought to his Honour's attention at the time.

…

“[36]     In this case, a detailed consideration of the matter has led us to the conclusion that his Honour Heerey J was perfectly entitled to reject the protestations of the appellants that they were ignorant of the fact that the listing of the proceedings for 2.15 pm on 15 October was for the substantive determination of the proceedings. On the basis of the information that was placed before his Honour, it was plainly open to reject the contention by the Scotts that the unpreparedness on their part to present their case was the fault of others, including officers of the court. Were this the sole basis upon which the appellants presented this appeal it would certainly not succeed.

“[37]     Unfortunately, there were circumstances which, in our view, should have been brought to his Honour's attention on the application for the adjournment, but which were not. It is those circumstances to which we now turn.

“[38]     As earlier indicated, both before his Honour and more extensively before this court, Mrs Scott submitted that their cases were not ready to be, and should not have been regarded as ready to be, set down for final hearing on 15 October 1998. Her justifications for this submission related both to matters allegedly of procedure and to the terms of the notice of listing. Though she went on to claim at first instance that she and her husband were ‘not ready for the final hearing yet’, his Honour would in the circumstances be pardoned for having assumed that Mrs Scott was doing no more than reiterating her view that, because the matter was not intended to be, nor should it have been, listed for final hearing, they had not prepared for such a hearing.

“[39]     The ground of appeal to this court and the argument presented to us have, however, made plain that the Scotts' lack of preparedness was attributable as well to another much more significant cause. At a directions hearing on 27 April 1998 the trial judge had ordered the respondents ‘to file and serve any affidavits on or before 17 July 1998’.. Far from complying with this direction, the second respondent served the appellants with three affidavits, two containing annexures of roughly 30 and 20 pages respectively, on 9 October 1998 - a mere 6 days before the hearing, on the Friday afternoon preceding that hearing. This was a default of almost 3 months.

“[40]     There is nothing in the transcript of proceedings before his Honour to suggest he was informed of this default, or of its possible significance in the preparation of the appellant's case. The likelihood is that he was not. Certainly Mrs Scott failed to articulate with any clarity the prejudice which this late provision of affidavit material might have occasioned to the case to be presented by herself and her husband. Importantly the second respondent took no steps to inform the court of the default.

“[41]     Counsel for the second respondent has sought before us to minimise the apparent significance of the default by asserting that ‘virtually everything’ in the affidavits was in some fashion or other within the knowledge of the Scotts. We are unable to accept this submission. To the extent that the affidavits both denied malice on the part of the deponents concerned (and thereby put directly in issue evidence concerning one of the central planks of the Scotts' case), and contained exhibits that were print-outs of payments made, they contained matter that was new. Mrs Scott has complained before us that she did not have sufficient time properly to analyse and respond to the affidavits. Not without some misgivings, we cannot see how that contention can be rejected.

“[42]     There are two considerations to which particular regard should be had in this matter. The first is that the appellants were unrepresented litigants; the second, that the second respondent was an officer of the Commonwealth. As to the first of these, we need not labour here the difficulty that the litigant in person can pose for a trial judge trying to ensure that the system of civil litigation functions fairly and justly in the circumstances. As the High Court observed in Neil v Nott (1994) 121 ALR 148; at 150, the court's endeavours to ascertain the rights of self represented parties are, often enough, ‘obfuscated by their own advocacy’.. We note immediately that we find no fault with his Honour's conduct of the hearing on 15 October nor with the conclusions he arrived at given the understandable assumption he appears to have made as to the time the appellants had to prepare for a final hearing. In refusing the adjournment application, his Honour observed that ‘[the appellants] had adequate time to prepare their cas’.. The fault in the matter lies, in our view, with the second respondent, which brings us to the second consideration to which regard must be had.

“[43]     The second respondent is, as we have noted, an officer of the Commonwealth. As such he properly is to be expected to adhere to those standards of fair dealing in the conduct of litigation that courts in this country have come to expect - and where there has been a lapse therefrom, to exact - from the Commonwealth and from its officers and agencies. The spirit of this ‘model litigant’ responsibility, now long enshrined in a policy document of the Commonwealth, is perhaps best captured in the observations of Griffith CJ in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333; at 342:

‘I am sometimes inclined to think that in some parts - not all - of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.’

“[44]     Insistence upon that standard is a recurrent theme in judicial decisions in this country in relation to the conduct of litigation by all three tiers of government: see eg Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155; at 166; 144 ALR 695; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151; at 196-7; 146 ALR 1; SCI Operations Pty Ltd v Commonwealth (1996) 69 FCR 346; at 368; 139 ALR 595; Director of Public Prosecutions (Cth) v Saxon (1992) 28 NSWLR 263; at 267; Kenny v South Australia (1987) 46 SASR 268; at 273; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537; at 558-9; P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366; at 383-4 see also R v Tower Hamlets London Borough Council, Ex parte Chetnik Developments Ltd [1988] AC 858; at 876-7.

[45]     As with most broad generalisations, the burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases. The courts have, for example, spoken positively of a public body's obligation of ‘conscientious compliance with the procedures designed to minimise cost and delay’: Kenny's case, above, at 273; and of assisting ‘the court to arrive at the proper and just result’: P & C Cantarella Pty Ltd v Egg Marketing Board, above, at 383. And they have spoken negatively, of not taking purely technical points of practice and procedure: Yong's case, above, at FCR 166; of not unfairly impairing the other party's capacity to defend itself: Saxon's case, above, at 268; and of not taking advantage of its own default: SCI Operations Pty Ltd, above, at FCR 368.

“[46]     In the present instance the second respondent (i) was in a position of obvious advantage in relation to unrepresented litigants; (ii) was significantly in default in complying with procedures designed to secure the fair and orderly preparation of the matter for hearing; (iii) served the affidavits on the appellants at an extremely late date with the consequential likely impairment of their capacity to prepare properly for a final hearing; (iv) did not inform his Honour of the default and of its possible consequences; and (v) took advantage of the inability of the appellants to articulate properly the basis for, and to secure, an adjournment. In our view the conclusion is inescapable that the second respondent has fallen considerably short of the standard properly to be expected of the Commonwealth.

“[47]     The court is conscious and appreciative of the assistance it regularly receives from officers and agencies of the Commonwealth particularly in matters in which the other party to litigation is unrepresented. Regrettably, such did not occur in this case. The consequence was, in our opinion, a miscarriage of justice.

“ [48]     During the course of the present hearing counsel for the second respondent acknowledged that had Mrs Scott's submission in this court been put to his Honour, he would have been hard put to resist an adjournment. That concession was properly made. We agree. The second respondent ought to have informed the trial judge of the default. Had this been done, his Honour would have had a different appreciation of the time the appellants had available to them to prepare for the hearing. He may well, and probably would, have taken an entirely different view of the adjournment application.”

9.       So much then for judicial pronouncements on the ethical standards expected of the Commonwealth in the contexts of litigation and contract, the Attorney-General has also issued directions in accordance with s 55ZF of the Judiciary Act 1903[3]:

[3] may issue directions

55ZF    (1)       The Attorney-General may issue directions (Legal Services Directions):

(a)       that are to apply generally to Commonwealth legal work; or

(b)       that are to apply to Commonwealth legal work being performed, or to be performed, in relation to a particular matter.

(2)       The Attorney-General may publish or give notice of Legal Services Directions in any manner the Attorney-General considers appropriate.

(3)       In this section:

Commonwealth legal work means:

(a)       any work performed by or on behalf of the AGS in the performance of its functions; or

(b)       any legal work performed by a person for any of the following:

(i)        the Commonwealth;

(ii)       a body established by an Act or regulations or by a law of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island);

(iii)      a company in which the Commonwealth has a controlling interest (including a company in which the Commonwealth has a controlling interest through one or more interposed Commonwealth authorities or Commonwealth companies);

(iv)      other persons or bodies referred to in subsection 55N(1), to the extent that the work relates to the person’s or body’s performance of a Commonwealth or Territory function.

10.     In relation to the Commonwealth as model litigant, and to those representing the Commonwealth in litigation, the Attorney-General has directed as follows[4]:

[4] ON THE COMMONWEALTH’S OBLIGATION TO ACT AS A MODEL LITIGANT

1. Consistently with the Attorney-General’s responsibility for the maintenance of proper standards in litigation, the Commonwealth and its agencies must behave as a model litigant in the conduct of litigation.

Nature of the obligation

2. The obligation requires that the Commonwealth and its agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or an agency by:

(a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation,

(b) paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid,

(c) acting consistently in the handling of claims and litigation,

(d) endeavouring to avoid litigation, wherever possible,

(e) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by:

(i) not requiring the other party to prove a matter which the Commonwealth or the agency knows to be true, and

(ii) not contesting liability if the Commonwealth or the agency knows that the dispute is really about quantum,

(f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim,

(g) not relying on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement,

(h) not undertaking and pursuing appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest, and

(i) apologising where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or improperly.

NOTES: 1. The obligation applies to litigation (including before courts, tribunals, inquiries, and in arbitration and other alternative dispute resolution processes) involving Commonwealth Departments and agencies, as well as Ministers and officers where the Commonwealth provides a full indemnity in respect of an action for damages brought against them personally. Ensuring compliance with the obligation is primarily the responsibility of the agency which has responsibility for the litigation. In addition, lawyers engaged in such litigation, whether Australian Government Solicitor, in-house or private, will need to act in accordance with the obligation and to assist their client agency to do so.

2.. In essence, being a model litigant requires that the Commonwealth and its agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards. The expectation that the Commonwealth and its agencies will act as a model litigant has been recognised by the Courts. See, for example, Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133 at 342; Kenny v State of South Australia (1987) 46 SASR 268 at 273; Yong Jun Qin v The Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155.

3. The obligation to act as a model litigant may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations.

4. The obligation does not prevent the Commonwealth and its agencies from acting firmly and properly to protect their interests. It does not therefore preclude all legitimate steps being taken to pursue claims by the Commonwealth and its agencies and testing or defending claims against them. The commencement of an appeal may be justified in the public interest where it is necessary to avoid prejudice to the interests of the Commonwealth or an agency pending the receipt or proper consideration of legal advice, provided that a decision whether to continue the appeal is made as soon as practicable.

5. The obligation does not prevent the Commonwealth from enforcing costs orders or seeking to recover its costs.

…”

11.     Notes 2 and 3 are especially instructive.  These require a standard of ethical fairness such that an emanation of the Commonwealth who is a respondent in a tribunal proceeding has an obligation to assist the tribunal to make the correct or preferable decision.  That party’s role is not to win at all costs.  There will be occasions where a respondent is aware of material favourable to the applicant’s case, sometimes when the applicant’s advisers are unaware of such material.  There is an obligation on the Commonwealth in such cases to apprise the tribunal of this material.

12.     The tribunal considered whether to refuse to accept some of the late produced material as evidence in the case.  However, the material was clearly relevant and the tribunal should take account of all relevant material in making a decision if it is to ensure that it is acting lawfully.  The best the tribunal could offer the applicant in the circumstances was an adjournment so as to permit full consideration of the evidence.  The applicant declined this offer for perhaps understandable reasons.

13.     It appeared to the tribunal that the particular solicitor involved in the respondent’s case was responsible for few, if any, of these problems.  The late creation of the statements in ex R22, R23 and R24 are a likely exception.  The tribunal is aware of this solicitor’s work in other matters that have come before it and other matters have not been affected by any problems similar to those that eventuated here.

LAW

14.     This was a case involving a decision that the effects of an injury had ceased.  As it was the respondent acting to bring about a change in the status quo it can be said that the respondent bears an effective onus to persuade the tribunal that the decision was justifiable.  On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Commission (1989) 86 ALR 399, 412-413:

“In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression ‘onus of proof’ where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.

“It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:

‘Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:

"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."’

“Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant.”

15. An employee must have suffered an injury, as defined in s 4(1) of the Act, if he or she is to receive any compensation under the Act. An injury is defined in s4(1) as:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that

employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

16. In this case the applicant argued that she had sustained an injury in that her employment had caused her cervical spondylosis to become symptomatic. Where a disease is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

17. The definition of a disease refers to an ailment and an aggravation as relevant concepts. These are defined also in s 4(1):

aggravation includes acceleration or recurrence;

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

18. An aggravation may also be present where the conditions set out in s 7(6) of the Act are met:

(6) An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a) the incapacity or impairment would not have occurred;

(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

(c) the extent of the incapacity or impairment would have been significantly less.

19. If an injury is present then s 14(1) of the Act provides that Comcare is liable to pay compensation to the employee:

Compensation for injuries

14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

20. An immediate issue is that the respondent’s purported cessation of effects of the accepted earlier injury was probably ineffective. The Federal Court has recently held that once Comcare has accepted liability under s 14(1) of the Act that liability remains in perpetuity save for a small number of exceptions. In Australian Postal Corporation v Oudyn [2003] FCA 318 the Federal Court (Cooper J) held as follows:

“31 The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24. These determinations give substance to the liability ‘... to pay compensation in accordance with this Act’, provided for in s 14. They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act. The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated.

“32 The power of APC to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees. A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury. The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.

“33 Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.

“34 APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.”

21.     The reference in paragraph 32 of the Oudyn case to cessation of liability on one of the five grounds referred to in Lees v Comcare (1999) 56 ALD 84 is a reference to the following grounds:

· Failure to provide the required notice under s 53 of the Act.

· Failure to make a claim in respect of an injury in accordance with s 54 of the Act.

·     A finding that the claimant for compensation was not an “employee” at the time of the alleged injury.

·     A finding that the employee did not suffer an injury.

·     A finding that the injury did not result in death, incapacity for work or impairment.

22. The Court held that, where a cessation is to occur in accordance with one of these grounds, the relevant authority should do so by way of reconsideration under s 62 of the Act.

23. However, the decision under review can be read down to mean that the applicant is denied compensation for the cost of medical treatment allegedly obtained in relation to the injury being treatment that it has been reasonable for the applicant to obtain in the circumstances in accordance with s 16 of the Act. The applicant also seeks (ex A1) compensation under s 29(1) and (2) of the Act for the cost of household services that the applicant allegedly reasonably requires. This has been denied by Comcare. The tribunal’s task is to decide whether the applicant’s employment by the HIC made a material contribution to the aggravation of the applicant’s cervical spondylosis such that the effects of that aggravation are continuing and require the applicant to obtain medical treatment and engage persons to provide household services.

CHRONOLOGICAL EVIDENCE

24.     This part of the reasons for decision is based on Ms Moline’s oral evidence except where otherwise indicated. 

25.     In her oral evidence Ms Moline said that she joined the HIC in late 1996 and became a permanent employee in March 1998.  She completed a form for HSA in March or April 1998 as part of the process by which she moved from probationary to permanent employment with the HIC (ex R25).  A questionnaire formed part of that document.  In the questionnaire she averred that she had a history of problems including, high or low blood pressure, asthma, pain or disability in the lower back or neck, pain or limitation in the use of her upper limbs, depression or difficulty sleeping, an eye disorder and she said she had taken medications for anxiety, depression or a nervous disorder.  She said she had had migraine or frequent headaches and that she was then on medication.  The examining doctor took notes about, amongst other things, the lower back pain, neck pain, frozen right shoulder three years before, depression and headaches.  He recorded the neck pain as “occasional lower back and neck pain”..  In cross-examination Ms Moline said she was not denying she had had some neck pain as at 1998. 

26.     As mentioned above, Ms Moline has a past medical history of a frozen shoulder.  This came on in 1994 and was diagnosed in 1995.  It resolved after 18 months. 

27.     Before the injury that occurred in March 1999 Ms Moline engaged in hobbies including sailing, jazz music, sketching, walking and birdwatching.  She performed the full range of domestic duties with no home help. 

28.     In March 1999 Ms Moline was working in the HIC’s Public Affairs Branch.  A conference was scheduled to occur in Sydney from 11 March 1999 until 19 March 1999.  The HIC was to mount a display stand for the duration of the conference.  On 10 March 1999, in Canberra at the HIC, Ms Moline assisted in demonstrating what was to be the HIC’s exhibition at the conference.  She took down the exhibits and packed up the display, stretching upwards to do this. 

29.     At 5.30 am on 11 March 1999 Ms Moline awoke to severe pain in the left of her rib cage.  She was concerned and saw Dr Yeung at 8.30 am (T4/6).  Ms Moline told Mr Jones in cross-examination that she thought only the left arm had been raised the previous day.  This appeared also in the applicant’s incident report (T7/12).  Dr Yeung recorded that she had stood on tiptoe and reached with both arms.  Dr Yeung found tenderness over the gall bladder and lower left costal region.  Ms Moline had concern that it was a heart problem.  However, the doctor thought the cause was probably muscular.  The pain abated. 

30.     Ms Moline packed her car and drove to Sydney in the afternoon to see to the exhibit at the conference.  She spoke to Ms Khan, her supervisor, during that morning.  There was no mention of any health issue according to Ms Moline.  Ms Khan, however, in ex R22, said that she had discussed with the applicant her medical appointment earlier in the day.  She said she recalled this because she had wondered whether Ms Moline was fit to travel to Sydney and wanted to check that out.  Ms Khan’s diary entry for the day (ex R22) indicated that Ms Moline mentioned she had been to the doctor and that Ms Khan discussed with her what was the problem.  She recorded that Ms Moline said it was a recurring blood pressure problem.  In cross-examination Ms Moline was adamant that this conversation did not take place.

31.     From 11 to 19 March 1999 Ms Moline worked at the conference and seems to have had no further ill-effects.  The conference closed on 19 March.  Ms Moline was left at 4.30 pm to pack up the HIC exhibition materials and stand.  She was to be assisted by two colleagues, however they arranged flights and left to return to Canberra.  Ms Moline had some 16 boxes which were the size described by removalists as wine or book boxes.  They were smaller than a tea chest. 

32.     The applicant’s task was to pack each box kneeling on the floor.  She had to tape around each box, rolling the filled box to achieve this.  She completed the work at 7.00 pm.  The evidence is confused regarding the immediate symptoms affecting Ms Moline.  She told her own counsel that the noticeable ill-effects were in the lower back, front right shoulder and right side of neck.  In cross-examination she agreed she had no immediate shoulder problem, only back pain.  She drove to Canberra that night, a Friday. 

33.     She had the next day, a Saturday, off work.  She said in cross-examination that the site of her pain was in her right shoulder on that day.  She said she was “quite sore” and felt it must have been caused by exertions the previous evening.  Ms Moline saw Dr McGuiness for a medical certificate to cover these symptoms and time she took off work from 26 March to 4 April 1999 (T10/26).  In that certificate Dr McGuiness recorded that the injury occurred in “1998/99”.  On the Saturday she had massage which assisted with the lumbar pain only.

34.     On Monday 22 March 1999 Ms Moline had flex leave.  She returned to work on Tuesday 23 March 1999 and worked on until 26 March.  She told no one of any injury.  Mr Jones, for the respondent, suggested that Ms Moline did her usual work but Ms Moline rejected that proposition.  On 24 March Ms Moline met with Ms Khan to discuss Ms Moline’s priorities now that she was back at work after the Sydney absence.  There was no reference to any injuries sustained by Ms Moline.

35.     Ms Moline had apparently seen Dr McGuiness on 2, 7 and 23 March 1999 for dizziness episodes (T10/23), there being no reference to shoulder problems.  Ms Moline told the tribunal that her shoulder symptoms in that week were severe such that she later sought treatment for them.  She said she could not sleep because of the shoulder pain.  She thinks she obtained massage in that week.

36.     During this week at work Ms Moline sought special leave for 29-30 March 1999.  She felt she had to be at home to assist her husband who was having a right shoulder operation.  She obtained a medical certificate from Dr Roberts in support of this leave (ex R12).  Ms Moline told the tribunal that she was to do the tasks her husband could not do because of his incapacitated right shoulder.  She said she had no choice in the matter.  She was required especially to do driving. 

37.     Ms Moline said that as time passed the condition did not improve and may have worsened.  However, on 1 April she saw Dr Coote, a general practitioner, about her blood pressure, hormone replacement therapy, and rheumatoid pains thought possibly to be Ross River fever (T21).  There was no reference to packing and securing boxes. 

38.     On 5 April Ms Moline saw Dr Yeung about pain in her right chest wall after lifting boxes (ex R11/1).  He provided a medical certificate (T6/9) for pulled right pectoral muscles due to lifting boxes.  He took her off heavy manual lifting from 5 to 12 April 1999. 

39.     On 7 April 1999 Ms Moline signed a Comcare claim form (ex A7).  That form contained the following, among other things:

·     The diagnosis was pulled right pectoral muscles due to lifting boxes.

·     The date of incident was 19 March 1999, with 10 March mentioned also.

·     Date of first medical treatment for the condition was 11 March 1999 and 5 April 1999 “+ others – see list attached”.  The list was not attached in ex TD1.

·     Description of the injury was “sharp pain on walking in left mid-chest region, intermittent throughout morning; extreme discomfort in lower back; intermittent pain inside right front shoulder, + pain in both arms, hands”..  Affected parts of the body were left chest, lower back, right shoulder, arms, hands, neck, headaches. 

·     The injury was said to affect Ms Moline with pain on bending, lifting even light weights, stretching, turning the car steering wheel, pain in shoulder in bed, headaches causing lack of sleep.

·     She admitted lower back pain in 1994-1995 and frozen shoulder in 1994-1996. 

·     The place where the injury occurred was the HIC on 10 March 1999 and, on 19-23 March 1999, the Millennium Hotel (Kings Cross, Sydney), Top of the Town Hotel (Kings Cross) and her Canberra house.

·     Witnesses were Cynthia Douglas of the HIC and Troy Matei of the Millennium Hotel. 

142.   While Comcare accepted liability for conditions referred to as “aggravations” of various types, in context Comcare appears to have seen the injury as a frank injury rather than aggravation of any identified underlying, pre-existing disease.  Comcare was apparently ignorant of the applicant’s spondylosis at the date of the determination of liability.  A preferable determination may have been to accept liability for an aggravation of cervical spondylosis.  Dr Woods was the only doctor who exactly supported such a diagnosis.  He posited a soft tissue injury in March 1999 that rendered the cervical spine degenerative disease symptomatic and was prepared to say that the symptoms had been continuing (paragraph 101). 

143.   The tribunal has already found that the cervical spondylosis had been symptomatic prior to March 1999, however if it had been quiescent in March 1999, was then rendered symptomatic by the applicant’s work in 1999 and had continued to be symptomatic to the current time, then this would constitute an aggravation in accordance with the principles set out in paragraph 132 above and would justify compensation for the entire period. 

144.   However, there is little evidence that any effects arising from the applicant’s work on 19 March 1999 have continued through to the present time.  With the exception of Dr Schellenberger, whose diagnosis of a rotator cuff problem was not endorsed by any other doctor, and whose diagnosis was not consistent with her findings on examination, up to date medical evidence now accepts that the source of the applicant’s current problems is her cervical spine.  The tribunal accepts that this is the case and so finds.

145.   The tribunal has difficulty accepting that any aggravation flowing from the events of 19 March 1999 persisted beyond late 2001.  The migration of symptoms from the right side of the upper body to the left in 2000 was identified as a problem by Drs Olsen (paragraph 91) and Woods (paragraph 105).  These doctors considered there to be no link between the left shoulder symptoms and work done in March 1999.  For various reasons the other doctors did not need to address the issue.  This was because they, with again the exception of Dr Schellenberger, did not accept on any basis a continuing causal link between the events of March 1999 and any symptoms in late 2001. 

146.   The tribunal rejects the theory that the applicant’s left-sided symptoms were related in any way to the events of 19 March 1999.  Dr Schellenberger endorsed a theory that the applicant’s use of her left hand to manipulate a computer mouse so as to reduce her right-sided symptoms had caused her symptoms to spread to her left side.  However, the tribunal was unimpressed with much of Dr Schellenberger’s evidence on this occasion.  It has already been noted that Dr Schellenberger found evidence of very few restrictions when she examined Ms Moline and that she favoured a rotator cuff diagnosis that was not adopted by any other expert witness.  In addition Dr Schellenberger was unable to explain cogently how the use of a mouse could generate symptoms such as Ms Moline had in her left side.  She tended to argue with Mr Jones during cross-examination rather than provide a helpful explanation.  She also seemed quite ready to shift ground to accept a cervical spondylosis diagnosis once she was apprised of the imaging studies in T69. 

147.   Dr Olsen (paragraphs 91, 94) said that the use of a mouse could not have the effect contended for.  He explained satisfactorily why this was the case in paragraph 94 above.  In addition there was consistent evidence from Drs Olsen (paragraph 98) and McGill (paragraph 118) that the work done by Ms Moline could not have permanently affected the cervical spondylosis.  They said that a traumatic event such as a motor vehicle accident, a fall from height or a blow from one side would be required in order to achieve a permanent effect.

148.   The tribunal therefore finds that, by the time of the primary decision in this matter, no aspects of the applicant’s employment for which the respondent was liable were any longer making any material contribution to any disease or aggravation of disease suffered by the applicant.  The tribunal is satisfied that this remains the case.

CONCLUSION

149.   The tribunal has found that Comcare is not liable to pay compensation in relation to Ms Moline’s current condition or symptoms.  This means that her application to the tribunal has been unsuccessful and that she does not qualify for costs associated with the application.

DECISION

150.   The tribunal affirms the decision under review.  The applicant is not entitled to costs associated with the application.

I certify that the 150 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella
Senior Member

Signed:          .......................................................................................
  Associate

Dates of hearing  19 - 21 May 2003
Date of decision  25 August 2003
Counsel for the applicant           Ms Jane Godtschalk
Solicitor for the applicant           Pamela Coward & Associates Lawyers
Counsel for the respondent      Mr Paul Jones
Solicitor for the respondent      Sparke Helmore Solicitors